Friday, April 1, 2011

Probably Not

Those of you who pay attention to this sort of thing will have noticed that there's been some serious discussion in the blawgs recently about how (if at all) to define "beyond a reasonable doubt" and what should follow when juries can't agree about it. (See Gideon and Gideon, Greenfield, Horowitz and Horowitz, Kennedy, and probably several others.)

Then Orin Kerr and Greenfield took on "probable cause." Kerr said it was good to leave it undefined and "unquantified" so that judges could violate the basic requirement that warrants stand or fall based on the information sworn to in the affidavit. (Lawyers like to say "within the four corners of the affidavit" because that reminds us that affidavits are supposed to have corners.)

By leaving probable cause unquantified, current law enables judges to use their intuition and situation-sense to recognize when missing information is likely important to assessing probable cause. Quantification would lead to less accurate probable cause determinations by disabling those intuitions, creating the false impression that the information provided in the affidavit is the only relevant information.

Greenfield knows better than to encourage judicial voodoo and ESP to take the place of lies facts sworn to by officers who seek warrants. Besides, he says, we all know what "probable cause" means.

Now, if you're not a lawyer, you might think that probable cause means something like "probably." You know, there's "probable cause," so it must be "probable." The courts (and they're the ones who decide these things, after all) take a different view.

The Supreme Court says "probable cause" is enough cause for a reasonable person to believe it, but maybe not enough to make it more likely than not. Got that? When it's probably not true but reasonable people would believe it anyway, that's probable cause. Really. Honest. Here's the language from Texas v. Brown (admittedly a plurality opinion, but everyone accepts it).

As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).

Probable cause means a "probability." There's a chance that the Sun will explode tomorrow ending the very existence of our planet. It's really unlikely. Astronomers figure the Sun should keep roughly as it is for another 4-5 billion years. But, hey, there's a probability. Just a verrrry teeny one. Probable cause.

So there you have the absolute key to the Fourth Amendment. When it's more likely than not that the evidence or contraband will not be found, when the search will probably be invasive but useless, they're supposed to issue a warrant.

Scott wants to go with Brinegar which actually makes sense. But that ain't the law as the courts read it.

And it sure as hell isn't the law in Ohio's First Appellate District. The case is State v. Cronin, and it actually turns on just what can be probable cause.

Cronin was driving through Cincinnati just after midnight when he did not run a red light. Ohio Highway Patrol Sergeant Robert Hayslip, saw Cronin enter an intersection while the light was yellow (which is legal) or maybe even green. The light turned red or maybe yellow, perhaps before Cronin got all the way through the intersection but perhaps not, and legally it doesn't matter because (once again) you can enter the intersection while the light is yellow (and certainly when it's green) in Ohio.

Hayslip pulled Cronin over for running a red light. Which, as Hayslip observed, he had not done.

What followed was a couple of failed field sobriety tests and charges of driving under the influence and running a red light. The trial court suppressed the evidence concluding that the evidence of the DUI was a product of an unconstitutional traffic stop. The court of appeals summarized the trial court.

“Therefore,” the court concluded that Cronin “did not run a red light, and there was no reasonable articulable suspicion to stop [Cronin’s] vehicle.”

So the state of Ohio appealed because, why the hell not.

First, says the court of appeals, the trial court got it wrong. A traffic stop requires more than reasonable articulable suspicion. It requires probable cause. OK, that's looking good. I mean, if the trial court found that the stop wasn't justified even by a measure less than probably not probable cause, then surely it isn't justified by probable cause itself.

How foolish you are to think that.

Probable cause can exist even if the officer incorrectly determines that a traffic violation has occurred or if the officer misunderstands the law that the driver is allegedly violating. The test is whether an objectively reasonable police officer would believe that a traffic violation has occurred based upon the totality of the circumstances. This is an objective standard, not a subjective one.
The proper focus is not on whether a defendant could have been stopped because a traffic violation had in fact occurred, but on whether the officer had probable cause to believe an offense had occurred. The fact that a defendant could not ultimately be convicted of failure to obey a traffic signal is not determinative of whether an officer acted reasonably in stopping him for that offense. “Probable cause does not require the officer to correctly predict that a conviction will result.”
Here, Sgt. Hayslip, without the benefit of a digital review of the events, testified that when the traffic-control signal “turned red,” Cronin’s vehicle was in the intersection. This observation, made by an experienced law-enforcement officer, provided objective evidence from which a reasonable police officer could have concluded that a traffic violation had occurred. When, as here, an officer personally observes what he reasonably believes to be a traffic violation, the officer has probable cause to initiate a traffic stop. The trial court erred in reaching its legal conclusion that Sgt. Hayslip lacked an appropriate justification to stop Cronin’s vehicle.

Let me summarize that (by the way, I omitted the footnote case citations).

Probable cause is an objective test. If the Hayslip had an objective basis to believe that Cronin violated the traffic law, then he had probable cause to stop the car. Hayslip's testimony indicated that he saw Cronin enter the intersection while the light was yellow. Therefore he had probable cause to stop Cronin for running the red light.

That is, based on observing that Cronin did not run the red light, Hayslip had probable cause to stop Cronin for running the red light.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
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